New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1887-11-30
are correct follows that was made IN reoe
ing made before the committee against Inc
defondanrs objection.

Iho Court OF ApDeala oOn8uora ~ tuo PviHs
the ruling Of Justice Barrett az to the evidence
Of the witness Pote who was an cngrossing oierk Oh
the Assembly 1888 and who testified that sharp pro-
posed 10 pay him s. 600 alter bill 80 as to authorize
the construction OF a railroad in Broadway the Cours
ar. deals with the argument ohe prosecution that tho
testimony might be introduced to overcome the pre-
sumption and to show that no sense
of right and wrong fear Of law or punishment would
deter him from committing the offence or bribery
for tho one purpose which he had In vlsw
In all hts Efforts" The Court considers that
this indicates an attempt to prove snarps
character be bad which the law does not allow unless
the defendant has first introduced evidence good char
seter gons upon the witness stand Even In such
case tho evidence must be Of general reputation and
not OF particular acts.
The rule Is said to DO that proof Of the COM
mission Of crime admissible in evidence In the
trial OF the offender for another crime" The opin-
ION continues 1:
How them Is this case to taken Of this general
rule law The learned Judge. in submitting the case
desired the jury to consider the Pottc evidence a.
exhibited" and allow themselves to be prejudced
By testimony In regard the Offer of bride saying
the extent Of the defendants feeling.
interest and DESIRE adding. should be the
Otherwise considered 80 far It tends throw any
dark shallow upon the defendant desire you - eH'in-
at- from your consideration ana treat IL merely as
evidence tending TO show depth Of interest motive anu
desire" These rrnars, not only answer the respond,
ens arguments. but point TO the danger which might
follow from The cydcnce- They were obviously made
careful OF the evidence given by Pottle
authorizes the comment OF the appellants counsel that
III was not part Of TIE conversation, but that It the
whole" Unless admissible as proving an attemPt to
commit crime II Is wholly immatera. and IA proof or
dlcial to the defendant. The mental ability aud dis
position VI tho defendant TO commit crime OF
nj .ort Will. ght have persuaded the iury raises
no a prcsumption. IL IL not moral evidence
. Moreover IL has been distinctly concealed by tho
defendant that desired secure the franchise for the
Surface Railroad I'd therefore evidence OF
his commission Of crime for tho mere purpose or snow
Ing tai desr. was wholly Unnecessary and ws may
peat here the language OF Allan. j.. I'm the Coleman
80 y. Y. 81. upon a simple question " IL was
idle and frivolous put In this evidence Tor the purpose
avowcl while It's Influence could not be otherwise than
damaging 10 the prisoner II was put In near tho be-
ginang OF the trial ri the impression made then must
havr continued with the Jury their minds coloreI
and despcnedfi did setdsiortthe Subsequent evidence
II di n,ic-d east dark shallow upsn hs defendants
character II not only tended very strongly 70 prove the
defendant guilty. It was absolute proof; but
II offered and received directly the main issue
ana was Of great and persuarys force AGAINST him
such evidence ~ uniformly condemned as tending 10
draw the aais OF the jurors from the real point ell
which their verdict IS sought and TO stcits prejudice
coived and the exception to its admission well taken
MuLEK's THOUGHTS AND CoNJEcIUREs.
The court next considers some Of the testimony
given by eI- alderman Miller. who testified o
receiving money from DO Lacey The
witness asksd. " What did you think
at the time that DE Lacey gave to you forT The wit
supposed Tor tue Broadway road As to this tes
imony. the court says:
II was que lmpsnble % find any ground on which
mo 'tc.ption taken can DO overeome The trAns"cton
but, with nepsst Iteration FOR "a splnioz. snppoi-
lest from re repeated and persistent attempt to OBJ
ain IT, Inc court brier we're or the
hr jury could not have GIVEN effect whatever to the
expression of Opiai0u or superstition Of the witness
because tl- whole transaction between DsIaccy and
lf'rrwIrf II was bar the
uH alsO VA received under an objection AMI was er
.-p,it. II crrts y dit not curr nc difficulty. .
inc tnou. the undertaking or hc not
'yaelcc 1hs Jury migsi. howsvcr. naturally reason
has IL. conclu.". Of the witness drawn from al tns
acts within his own ksovcse. airiy represented the
nature AMI tie extent Of no connection between the
'racu,cs which A.d preceded t.
INIDHNCE OF kEtNANs FLIGHT ISADMIssInLE
An error 4so fouul IN tao admi,,,a Of ths tc,tt
nouy OK as ertvo, tAA they had endeayercd 10 nud
>cciau. M,DH-y and De Lacey order TO serve sub
, o.ua- them and learned that they were al in /
snadA Tho rsi-ncs odcrei o. ;ar pea that tao /
,,trctNttorncy hal niado a. GENT efforts obtain the
s'ercs Of these wlO IL sst be mtrra. wncsses
Sr The prosecution and TO account or thSr absence.
re opinion says:
Ws TANK evidence Of their shscsco iulims'ble. /
he danger very seai tat ,arh testimony VIII Pfsn
lee party against won u Is otafed u may bo and
timer 'is which would naturally call Tor Al * Anaon.
nt 90" -hs~n'" if" toe Jhr "ic"n 81 ih" court 81 an
,s-ocao or OL- 'ssniurly opHnsr'e! with tts defend
at 90 Ito ac; sharecd sasir construed 4, evidence Or
mt And "h'e.- ~" occasion '-..s f"r 'nch pools
,tos offered. All ~ admission va, 4. very IL .crsl,
nn"V"u"n hp'n nc general rule which c1cilirs II As /
r~i-yAst 10 tne i.suc
{ udcr the CIRCUMSTANCES Of the case tho /
un-s Of tho court ia mi, iu,tnace may not
aV" hTea OF nuch Importance, ard upon Il /
lon- should .ot grant trial Bus |
be .rrs principle when r.iurys relevant and material
'idencc mi 'dmi'' M e'her IS important and however
.ron' H.. co. arr a-a'nst an arot.cd rer,In may be
nj sewe'er great tue cv n .ncoyrr he cannot prop
~ ho male the subject 81 udiri4 cnenrr M So ne
rme is sub,aniitci ACCORDING 20 ths established rules
evidence Inc -tnsr exceptions r-fsrrsd 10 point 70
IL d-io tdht Aud 10 tue behcht o. th"sr exceptions ne
vniii-i Ir~' require nav teal and that IT may be
tG lie lucne-t of me court JcS~ Ind ho cOhylctOa
hOl.d 10 reversed aud new TIA granted
JUDGE PECKHAM's oPG>rON.
Judge Pecbham, In a supplemental opinion. DIS |
uS,~s tho admission Of the evidence Of Pptic, which
pc considers to have been lie quotes many |
a-e, show tho inadmis,blity ofcyldcnce OF other
ncnccs than the trial lie also says:
Upon the basis, It IS difficult to tho ma
rraity or aimi-,ibillty Of the evidence that the
,ourr- after the passage ~ me act Of 17-l paid 10
helps tho so 600 testified to by Phelps. Tho |
ldcncc, u be seen. had tendency to prejudice
llgran. While wholly iuadms,lblc fpr any such pur
.sc AM IL would seem to be quito questionable To
dm' u for the purpose OF proving an interest In |
lroul"ny Railroad about which their could b", and
"a, mo- dts prte or contradictions We call attention 10
he question wittout absolutely deciding a.
Tho Law must protect all who como within IT'S |
plrlc Whether tho person Who invoices ~ protection
Gem, to- bo Sorriy pressed by the weight OF lncul-
,inrv evidence I'm the case or not W. cannot alter
pr tho purpose Of securing conviction of cnr who
las bc called regarded great criminal and Yet
e. ln,olcd for Tho purpose OF shcltcriug an innocent
IAN I'm the eve ~ the law. all are innocent unll /
nuglctcd in accordance with the forms uf law and by
clos, adherence 10 rs rules. For the reasons above
ivru. wru upon all the grounds so stated IN tho
'nrucd opinion III my brother pauiorth. am IN favor
( reversing the conviction, and granting new trial
EN. POWELLS BROTHER SHOOTS Az EDITOR
REDWOOD CITY, Cal. Nov. 29.-is :. smith. Editor Of
he R,lrood TDieS and Gd-,e shot this afternoon
' Dr. L. +. Powell OF this place The shooting grew
~ ~ the publication Of an article by smith. in which
swell was charged vita detraudiug widow. Smith Is
"a critical condition. Powell placed under arrest
/, .aid 20 brother Of General l. T. Powell. Demo
4iis candidate for Governor or OHIO at tho lato
eciion